25 comments:

Who dreams up terms such as 'metapragmatism'? In my experience, when phrases and terms such as this are developed it is an attempt at pseudo-science in search of public funding.I am certainly glad that I was not subjected to this symposium.

There's no peer review of much of what lawprofs write (which is not necessarily the end-all-be-all of quality) academically and their op-eds are edited by newspaper editors -- and what the hell do they know? The Volokh guys periodically hash out the "law review articles are too long, etc." jazz

I agree with this premise but disagree with the larger point Mertz seems to be making. The purpose of the adversarial structure of the legal system is to arrive at truth by having competing views zealously advocated. Whatever its flaws, I think this structure is a more effective means of accomplishing that goal than any alternative.

In the academic world--a marketplace of ideas--treating one's intellectual product as a client is not necessarily a bad thing, so long as basic standards of intellectual honesty and open debate are observed. In an academic environment in which intellectual diversity is valued, vigorous debate will result in ideas rising and falling on merit. I don't think it is necessary for advocates of those ideas to try (or pretend) to act as scientists.

The larger problem than law professors treating their ideas as clients is the fiction that the published work of social scientists is purely scientific work. While empirical study in the social sciences is deserving of respect as true science, most of the final work product created by academics in the social sciences is laden with subjective social and political judgments. Better to treat such work as what it is, and let it rise or fall on the merits, than to shield it from criticism from outside the social science academy by attacking such criticism as unscientific.

To put it a little more concretely, if a law professor publishes something critical of the work of a social scientist, I would want to see whose view is more persuasively stated, without starting from the assumption that the law professor's work is more prone to bias and thus must be looked upon with greater skepticism.

I hope this doesn't sound like an attack on the social sciences. Obviously, such work is important. I just cannot accept the idea that there is some higher level of scientific rigor distinguishing most of what is published in the social sciences from what is published by legal academics.

David, I don't know your work or education background (so I apologize if I'm telling you something you know well already), but if you think "metapragmatism" is bad you should read some modern (say last 40 years especially) literary criticism. Ugh! It is awful and pretentious -- "shitty" a common man migt say. Full of 50-Cent (no not "Fitty" Cent) words and sentences that make Joseph Conrad seems "punchy". No wonder students hate studying literature. These creatures suck the joy out of it.

While empirical study in the social sciences is deserving of respect as true science, most of the final work product created by academics in the social sciences is laden with subjective social and political judgments.

Huh?

I'm sorry; this confused me. Are social scientists scientists, or aren't they? Most (published, peer-reviewed) work I read in the social sciences goes out of its way not to engage subjective / political / normative topics, to the point that some in the social sciences criticize that work for being too "ivory tower" and not engaging enough with the "real world."

Mertz's (and, to an extent, Ann's) point seems to be that lawyers are trained to marshall evidence in favor of their position while ignoring/minimizing/discrediting evidence that contradicts it, an approach that is anathema to scientists (including social scientists). The sort of argument that generally does well in a student-edited law journal -- that is, one that exemplifies the adversarial approach described above -- will be DOA in any reputable, peer-reviewed journal in the social sciences.

In short, there is a "higher level of scientific rigor" in the social sciences than in the legal academy. That isn't to say one is better than the other, only that they are different: one is scientific, the other (generally) isn't.

[L]awyers are trained to marshall evidence in favor of their position while ignoring/minimizing/discrediting evidence that contradicts it...

Sort of, but not quite. A good lawyer needs to understand and refute competing arguments, in order to be successful. Ignoring contrary authority or argument will cause a court to dismiss one's arguments pretty damned fast. I'd say the more problemmatic problem with legal training as a basis for academic work is not a refusal to look at contrary evidence or reasoning, but rather a presumption that you start with a desired result, and then fill in the gaps with reasoning to make it work. It helps develop rhetorical skills to a high level, but it doesn't really prepare one very well for dispassionate inquiry.

For my money, we need more profs writing good treatises summarizing the law for practicioners, and less time spent navel gazing and making arguments no court will ever accept. But then again, the navel gazing is fun, and if I got paid to do it, I can't guarantee that I wouldn't indulge.

It sounds like the goal of this field of study is to deconstruct the legal opinions of various judges. In the humanities, this technique has revealed that Western culture, white males, and Christianity are all quite bad. Something tells me these lawyers won't be "scientifically" analyzing the liberal opinions.

I agree with jeff d; the adversarial system relies on free inquiry between equals, not the opinion of self-appointed brahmins, to maintain societal order.

A sensitive question must be asked: are these folks really competent to teach law students the skills they will actually need as lawyers? I mean, do they understand law as logical argumentation about rules applied to facts or do they see it as uncovering "metalinguistic" and "metapragmatic cues", whatever they are?

It may be better for all concerned if these New Legal Realists work on their theories in anthropology and sociology departments rather than law schools.

A sensitive question must be asked: are these folks really competent to teach law students the skills they will actually need as lawyers? I mean, do they understand law as logical argumentation about rules applied to facts or do they see it as uncovering "metalinguistic" and "metapragmatic cues", whatever they are?

There's a broader question to be asked about what a legal education ought to entail. It's certainly not primarily a matter of teaching substantive black-letter law. Nor is it really focussed on what lawyers actually do all day (not trial advocacy or brief-writing, which are the two "practical" lawyer skills law schools tend to focus on). So perhaps they're ideally selected for a particular vision of law school, one not mostly about teaching skills students will need as lawyers.

That out of the way, a lot of adjunct professors at the law school I attended were practicing lawyers down in the city (NY). So they certainly had the skills necessary for work as real lawyers. They weren't exactly confined to the ivory tower. I expect that the interaction between adjunct and full-time faculty would further prevent the full-time faculty from becoming totally insulated in their field too.

Personally, I would be skeptical of anything written by a law professor.

Roshi, my answer is mu.

Perhaps because I am a scientist and engineer and strive for intellectual honesty, and I cannot perceive that there is a koan to answer. We strive to be properly skeptical of all things and to test and so your statement resolves to a tautology. As Feynman instructs us:

The first principle is that you must not fool yourself--and you are the easiest person to fool. So you have to be very careful about that. After you've not fooled yourself, it's easy not to fool other scientists. You just have to be honest in a conventional way after that.

I would like to add something that's not essential to the science, but something I kind of believe, which is that you should not fool the layman when you're talking as a scientist. I am not trying to tell you what to do about cheating on your wife, or fooling your girlfriend, or something like that, when you're not trying to be a scientist, but just trying to be an ordinary human being. We'll leave those problems up to you and your rabbi. I'm talking about a specific, extra type of integrity that is not lying, but bending over backwards to show how you're maybe wrong, that you ought to have when acting as a scientist. And this is our responsibility as scientists, certainly to other scientists, and I think to laymen.

For example, I was a little surprised when I was talking to a friend who was going to go on the radio. He does work on cosmology and astronomy, and he wondered how he would explain what the applications of his work were. "Well," I said, "there aren't any." He said, "Yes, but then we won't get support for more research of this kind." I think that's kind of dishonest. If you're representing yourself as a scientist, then you should explain to the layman what you're doing-- and if they don't support you under those circumstances, then that's their decision.

One example of the principle is this: If you've made up your mind to test a theory, or you want to explain some idea, you should always decide to publish it whichever way it comes out. If we only publish results of a certain kind, we can make the argument look good. We must publish BOTH kinds of results.

I say that's also important in giving certain types of government advice. Supposing a senator asked you for advice about whether drilling a hole should be done in his state; and you decide it would be better in some other state. If you don't publish such a result, it seems to me you're not giving scientific advice. You're being used. If your answer happens to come out in the direction the government or the politicians like, they can use it as an argument in their favor; if it comes out the other way, they don't publish at all. That's not giving scientific advice.

First of all, thanks to Ann for linking up to our guest blog at ELS. And, I can't say I blame anyone who found my terminology obnoxious -- I didn't even try to explain it! I definitely should've resisted the urge to add my "personal footnote" about linguistics. Sorry. It's actually much more sensible than it sounds, but hard to explain in a sound bite. And I didn't want to highjack the whole NLR blog with an essay on anthropological linguistics.

In less technical language, my postscript basically points out that we can misunderstand each other if we don't ask whether we share assumptions about what we're doing when we're talking. The very same words ("get out!") can mean something quite different if you think we're having a fight, and I'm thinking we're kidding around.

I think both law profs and social scientists are guilty of assuming too much when they try to talk with each other.

Now, we could just all give up. But I think that would be silly. We have a lot to teach each other.

And, whatever you think of "metalanguage" -- please don't visit your ire on the core new legal realist mission! That was just me talking --

I, too, am a scientist and an engineer. When one understands science and engineering, one understands much that others do not. As a scientist and an engineer, I understand this. In science and engineering it is important to understand these things. The truth is very important in science and engineering. That is why I became a scientist and an engineer, which is very difficult.

Perhaps because I am a scientist and engineer and strive for intellectual honesty

If you're so smart and honest, why would you conflate skepticism with hostility?

Or have you so bought into the left-wing version of "truth" as emotion such that casting a critical eye at something is akin to brutalizing it, and things like affirmative action must be accepted uncritically? Because I don't get a lot of love when I express even the slightest skepticism there. It's a good thing I'm not looking for love & approval from far lefties (and when I am, I keep my mouth shut).

I think Ann Althouse writes for an educated, critical audience (80% of whom apparently skipped a grade). I think she would be deeply disappointed if her readers were accepting what she said uncritically and not really giving it another thought, even if after coming to the site they always agreed with her 100%.